Department 30, Spring Street Courthouse

December 8, 2022

21STCV45171

Motion to Quash Service of Summons filed by Defendant Rodrigo Manuel

The unopposed motion is granted.

The Court sets an OSC Re: Dismissal for Failure to File Proof of Service by Publication (pursuant to order for publication granted on 9/29/2022) as to Defendant Rodrigo Francisco Manuel on Mach 15, 2023 at 8:30 a.m.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.   

Moving Arguments

Defendant Manuel seeks to quash service of summons defective because Manuel has not lived at the address where he was served in 3-4 years.

Opposing Arguments

None.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes:  (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (Code Civ. Proc., § 418.10(a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Code Civ. Pro. section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business . . . in the presence of a competent member of the household . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail . . . .”  (Code Civ. Proc., § 415.20(b).) 

Defendant Manuel moves to quash service of summons on the grounds that he was never served, and Plaintiff failed to effectuate substituted service.

The evidence shows that Plaintiff served Manuel at 19345 Tahoe Street, Rialto, CA 92376. (Case Decl., ¶4.) Plaintiff’s Counsel met with Manuel’s Counsel and informed him that this was the address listed in the police report on the subject collision. (Id.) Plaintiff also believed Manuel’s family lived at that address and that Manuel was living there under the name Francisco Abad. (Id.) Plaintiff filed proof of service on July 18, 2022. (Id., ¶5.) 

On May 1, 2020, police spoke with Aida Torres, the owner of the residence at 19345 Tahoe Street, Rialto, CA 92376, who stated she had not seen or heard from Defendant Manuel since the night of the collision. (Case Decl., ¶7.) Manuel’s insurer, Kemper Insurance, retained an investigative service to locate Manuel. (Id., ¶8.) The investigators spoke with Torres on July 8, 2020 and learned that Manuel used to rent a room from her but had moved out. (Id.) Plaintiffs in a related case were unable to locate Manuel and applied to serve Manuel via publication in March 2022. (Id., ¶9.) Manuel’s Counsel retained another private investigator to locate Manuel. (Id., ¶10.) The investigator spoke with Torres who informed the investigator that she had no contact with Manuel since his departure 3 or 4 years ago. (Id.) Torres never accepted service on Manuel’s behalf and informed the process server that Manuel no longer resided there and that she had no way to deliver the documents to him. (Id.) The investigator also spoke to Francisco Abad, who informed him that Manuel was his nephew. (Id.)

The evidence shows that Manuel has not resided at the 19345 Tahoe Street address since at least 2019. Because that address is not Manuel’s dwelling, usual place of abode, or usual place of business, the Court finds that Plaintiff did not affect substituted service. Defendant Manuel’s motion to quash service of summons is granted.